If the stock of merchandise sold to Whitehurst was the only property subject to his debts owned by Barnwell at the time of the sale, the necessary effect of the sale would be to place him in a position to defy his creditors. The custom of merchants, in carrying on such business as Barnwell’s, to buy upon credit, would ordinarily give to the purchaser of his goods notice that he was, more or less, in debt at the time of the sale. If, therefore, Barnwell was, in fact, insolvent, such a sale as that made to Whitehurst would be well calculated to arouse suspicion, and to excite a prudent purchaser to inquire as to the situation and motives inducing the sale. Blum v. Simpson, 66 Tex., 84.
On the other hand, if the seller has plenty of other property to satisfy all the liabilities the size and character of his business would induce any one to suppose he would owe at any one time, the effect of the sale of his stock in trade is not to place him in a position to defraud his creditors; and the knowledge of this situation on the part of the purchaser would silence inquiry.
Without proof of the insolvency of Barnwell, there was no proof of the occasion for inquiry on the part of Whitehurst. If Barnwell was solvent, the sale might still be fraudulent; but, unless he was insolvent, the duty of inquiry by the purchaser would not necessarily arise from the character of the sale. There is much in this record to make us suspect that Barnwell was insolvent, but there is no proof of the fact, nor of any circumstances by which the fact could be considered established.
Without this evidence, we cannot determine that the finding of the court below, that Whitehurst was an innocent purchaser, is not sufficiently supported by the testimony. There is no distinct finding that reasonable diligence on the part of Whitehurst would not have discovered to him the fraudulent purpose of Barnwell, but this is fairly embraced in the general finding of fact.
As presented in this record, no error is disclosed in the judgment, and it must be affirmed.
Affirmed.
[Opinion delivered May 14, 1886.]